What is a patent? A United States Of America Patent is essentially a “grant of rights” for a limited period. In layman’s terms, it is a contract in which the United States Of America government expressly permits an individual or company to monopolize a certain concept for a very limited time.
Typically, our government frowns upon any kind of monopolization in commerce, as a result of belief that monopolization hinders free trade and competition, degrading our economy. A good example is the forced break-up of Bell Telephone some years back into the many regional phone companies. The government, specifically the Justice Department (the governmental agency which prosecutes monopoly or “antitrust” violations), believed that Bell Telephone was an unfair monopoly and forced it to relinquish its monopoly powers within the telephone industry.
Why, then, would the us government permit a monopoly by means of Inventors Help? The government makes an exception to encourage inventors in the future forward with their creations. By doing this, the us government actually promotes advancements in science and technology.
To begin with, it needs to be clear to you personally exactly how a patent behaves as a “monopoly. “A patent permits the owner in the patent to avoid other people from producing the product or utilizing the process covered by the patent. Think of Thomas Edison along with his most famous patented invention, the light bulb. Along with his patent for your bulb, Thomas Edison could prevent any other person or company from producing, using or selling light bulbs without his permission. Essentially, nobody could contest with him in the light business, so therefore he possessed a monopoly.
However, to be able to receive his monopoly, Thomas Edison were required to give something in turn. He required to fully “disclose” his invention for the public.
To obtain a United States Patent, an inventor must fully disclose just what the invention is, the way it operates, and the easiest way known through the inventor to really make it.It really is this disclosure to the public which entitles the inventor to some monopoly.The logic for carrying this out is the fact that by promising inventors a monopoly in exchange for his or her disclosures for the public, inventors will continually attempt to develop technologies and disclose them to the public. Providing all of them with the monopoly enables them to profit financially from your invention. Without this “tradeoff,” there could be few incentives to build up new technologies, because without having a patent monopoly an inventor’s hard work would bring him no financial reward.Fearing that the invention would be stolen when they attempt to commercialize it, the inventor might never tell a soul about their invention, and also the public would not benefit.
The grant of rights within patent lasts for a restricted period.Utility patents expire 20 years when they are filed.If this was incorrect, and patent monopolies lasted indefinitely, there will be serious consequences. As an example, if Thomas Edison still held an in-force patent for your light bulb, we might probably must pay about $300 to purchase a light bulb today.Without competition, there will be little incentive for Edison to boost upon his bulb.Instead, once the Edison bulb patent expired, everybody was able to manufacture lights, and lots of companies did.The vigorous competition to accomplish that after expiration in the Edison patent led to higher quality, lower costing lights.
Kinds of patents. You can find essentially three varieties of patents which you should be aware of — utility patents, design patents, and provisional patent applications. A utility patent applies to inventions which may have a “functional” aspect (quite simply, the invention accomplishes a utilitarian result — it genuinely “does” something).In other words, the one thing which is different or “special” concerning the invention has to be for a functional purpose.To be eligible for utility patent protection, an invention also must fall within a minumum of one of the following “statutory categories” as required under 35 USC 101. Remember that virtually any physical, functional invention will fall under at least one of those categories, so you will not need to be worried about which category best describes your invention.
A) Machine: think of a “machine” as a thing that accomplishes an activity as a result of interaction of their physical parts, such as a can opener, a car engine, a fax machine, etc.This is the combination and interconnection of those physical parts in which we are concerned and which can be protected from the Inventhelp Caveman Commercials.
B) Article of manufacture: “articles of manufacture” ought to be thought of as items that accomplish a task like a machine, but minus the interaction of various physical parts.While articles of manufacture and machines may are most often similar in many instances, you can distinguish the 2 by thinking of articles of manufacture as increasing numbers of simplistic things that normally have no moving parts. A paper clip, as an example is definitely an article of manufacture.It accomplishes an activity (holding papers together), but is clearly not just a “machine” since it is a simple device which fails to rely on the interaction of varied parts.
C) Process: a way of performing something through one or more steps, each step interacting in some manner having a physical element, is regarded as a “process.” A procedure can be a new method of manufacturing a known product or could even be a new use for a known product. Board games are usually protected as being a process.
D) Composition of matter: typically chemical compositions like pharmaceuticals, mixtures, or compounds like soap, concrete, paint, plastic, and so on may be patented as “compositions of matter.” Food items and recipes are frequently protected in this way.
A design patent protects the “ornamental appearance” of the object, instead of its “utility” or function, which can be protected with a utility patent. Put simply, if the invention is a useful object that has a novel shape or overall appearance, a design patent might provide the appropriate protection. In order to avoid infringement, a copier would need to generate a version that does not look “substantially similar to the ordinary observer.”They cannot copy the shape and overall look without infringing the design and style patent.
A provisional patent application is really a step toward getting a utility patent, where the invention may not yet anticipate to get a utility patent. Quite simply, if it seems as though the invention cannot yet get a utility patent, the provisional application may be filed in the Patent Office to determine the inventor’s priority towards the invention.Since the inventor continues to develop the invention and make further developments that allow a utility patent to become obtained, then the inventor can “convert” the provisional application to your full utility application. This later application is “given credit” for that date once the provisional application was filed.
A provisional patent has several advantages:
A) Patent Pending Status: The most well known benefit from a Provisional Patent Application is that it allows the inventor to right away begin marking the item “patent pending.” It has a time-proven tremendous commercial value, just like the “as seen on television” label which can be placed on many products. A product bearing both of these phrases clearly possesses an industrial marketing advantage right from the start.
B) Ability to increase the invention: After filing the provisional application, the inventor has 1 year to “convert” the provisional in to a “full blown” utility application.In that year, the inventor need to try to commercialize the merchandise and assess its potential. When the product appears commercially viable during that year, then the inventor is encouraged to convert the provisional application in to a utility application.However, unlike an ordinary utility application which cannot be changed by any means, a provisional application might have additional material added to it to improve it upon its conversion within one year.Accordingly, any helpful information or tips that were obtained by the inventor or his marketing/advertising agents during commercialization from the product can be implemented and guarded during those times.
C) Establishment of any filing date: The provisional patent application offers the inventor having a crucial “filing date.” Quite simply, the date the provisional is filed becomes the invention’s filing date, for the later filed/converted utility patent.
Requirements for getting a utility patent. Once you are certain that your invention is a potential candidate for any utility patent (because it fits within among the statutory classes), you ought to then move ahead to assess whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” Those two requirements are essentially focused on whether your invention is new, and in case so, whether there is a substantial distinction between it and other products in the related field.
A) Novelty: To have a utility patent, you need to initially see whether your invention is “novel”. Put simply, is your invention new?Are you the very first person to get thought of it? For example, should you obtain a patent on the light, it seems like quite clear that you simply would not really entitled to a patent, since the bulb is not really a brand new invention. The Patent Office, after receiving your application, would reject it based on the truth that Edison invented the sunshine bulb a long time ago. In rejecting your patent application, the Patent Office would actually cite the Edison bulb patent against you as relevant “prior art” (prior art is everything “known” just before your conception from the invention or everything recognized to the public several year prior to deciding to file a patent application for the invention).
For your invention to get novel with respect to other inventions on earth (prior art), it has to simply be different in a few minimal way. Any trivial physical difference will suffice to render your invention novel over a similar invention.Should you invent a square bulb, your invention would sometimes be novel when compared to the Edison bulb (since his was round/elliptical). If the patent office would cite the round Edison light against your square one as prior art to show that the invention had not been novel, they might be incorrect. However, if there exists an invention which can be just like yours in every way your invention lacks novelty and is also not patentable.
Typically, the novelty requirement is incredibly very easy to overcome, since any slight variation in good shape, size, mixture of elements, etc. will satisfy it. However, even though the invention is novel, it could fail another requirement mentioned previously: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, tend not to celebrate yet — it is more difficult to meet the non-obviousness requirement.
B) Non-obviousness: As mentioned above, the novelty requirement is definitely the easy obstacle to get over inside the quest for a patent. Indeed, if novelty were the only real requirement to satisfy, then just about everything conceivable might be patented provided that it differed slightly from all of previously developed conceptions. Accordingly, a much more difficult, complex requirement has to be satisfied following the novelty question for you is met. This second requirement is known as “non-obviousness.”
The non-obviousness requirement states partly that although an invention as well as the related prior art might not be “identical” (which means the invention is novel with respect to the prior art), the invention may nevertheless be unpatentable in the event the differences between it and also the related prior art would be considered “obvious” to a person having ordinary skill in the area of the particular invention.
This is in fact the Patent and Trademark Office’s way of subjectively judging the “quality” of the invention. Clearly the PTO has no latitude in judging whether your invention is novel or otherwise — it is actually almost always quite evident whether any differences exist between your invention and the prior art.With this point there is absolutely no room for subjective opinion. Regarding non-obviousness, however, there is quite a bit of room for various opinions, considering that the requirement is inherently subjective: different people, including different Examiners at the Patent Office, may have different opinions regarding whether the invention is really obvious.
Some common types of things that are certainly not usually considered significant, and thus which can be usually considered “obvious” include: the mere substitution of materials to create something much lighter; changing the size or color; combining pieces of the type commonly found together; substituting one well-known component for the next similar component, etc.
IV. Precisely what is considered prior art from the Patent Office?
The patent laws, specifically 35 U.S.C. section 102, outline eight major kinds of prior art which may be used to prevent you from getting a patent. Put simply, it defines exactly those activities that the PTO can cite against you in an attempt to prove that the invention is not really actually novel or even to show that your invention is obvious. These eight sections could be divided into an organized and understandable format consisting of two main categories: prior art which is dated before your date of “invention” (thus showing that you are currently not the initial inventor); and prior art which goes back just before your “filing date” (thus showing that you might have waited too long to file for a patent).
A) Prior art which goes back prior to your date of invention: It would appear to seem sensible that when prior art exists which dates before your date of invention, you must not be entitled to have a patent on that invention as you would not truly function as the first inventor. Section 102(a) of the patent law specifically describes the points which bring prior art when they occur before your date of invention:
1) Public knowledge in the United States: Any evidence that your invention was “known” by others, in the United States, prior to your date of invention. Even when there is no patent or written documentation showing that your invention was known in america, the PTO may still reject your patent application under section 102(a) as lacking novelty if they can show that your invention was generally proven to people prior to your date of invention.
2) Public use in the United States: Use by others of the invention you are attempting to patent in public in america, before your date of invention, can be held against your patent application by the PTO. This should make clear sense, since if a person else was publicly using the invention even before you conceived from it, you obviously can not be the first and first inventor of it, and you may not should receive a patent because of it.
3) Patented in america or abroad: Any United States or foreign patents which issued just before your date of invention and which disclose your invention is going to be used against your patent application through the PTO. As an example, think that you invent a lobster de-shelling tool on June 1, 2007.The PTO can use any patents which disclose the same lobster de-shelling tool, U . S . or foreign, which issued before June 1, 2007 (your date of invention) against your patent application.
4) Published publicly in United States or abroad: Any United States Of America or foreignprinted publications (like books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published before your date of invention will prevent you from obtaining a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you are not the initial inventor (since another person thought of it prior to deciding to) and you also are not eligible for patent onto it.
B)Prior art which extends back prior to your filing date: As noted above, prior art was described as everything known before your conception from the invention or everything proven to the general public more than one year before your filing of any patent application. What this means is that in many circumstances, even if you were the first one to have conceived/invented something, you will end up unable to get a patent onto it if it has entered the arena of public knowledge and over 1 year has gone by between that time along with your filing of the patent application. The goal of this rule is to encourage people to try to get patents on their inventions at the earliest opportunity or risk losing them forever. Section 102(b) in the patent law defines specifically those varieties of prior art which is often used against you being a “one-year bar” as follows:
1) Commercial activity in america: When the invention you intend to patent was sold or offered available for sale in the United States multiple year before you decide to file a patent application, then you are “barred” from ever acquiring a patent on your invention.
EXAMPLE: you conceive of your invention on January 1, 2008, and offer it for sale on January 3, 2008, so as to raise some funds to get a patent. You have to file your patent application no later than January 3, 2009 (one year through the day you offered it available for sale).Should you file your patent application on January 4, 2009, as an example, the PTO will reject your application for being barred since it was offered available for sale multiple year just before your filing date.This too will be the case if a person besides yourself begins selling your invention. Assume still that you simply conceived your invention on January 1, 2008, but did not sell or offer it available for sale publicly.You simply kept it to yourself.Also assume that on February 1, 2008, somebody else conceived of your own invention and began selling it. This starts your 1 year clock running!If you do not file a patent on your invention by February 2, 2009, (1 year from your date another person began selling it) then you also is going to be forever barred from obtaining a patent. Remember that this provision of the law prevents you against obtaining a patent, even though there is not any prior art dating back to before your date of conception and you truly are the initial inventor (thus satisfying 102(a)), simply because the invention was offered to the general public for more than 1 year before your filing date as a result of another person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your chances of acquiring a patent even if you are the first inventor and also have satisfied section 102(a).
2) Public use in america: When the invention you want to Inventhelp was applied in the usa by you or another more than one year before your filing of a patent application, then you certainly are “barred” from ever getting a patent on your own invention. Typical examples of public use are whenever you or somebody else display and make use of the invention in a trade show or public gathering, on television, or somewhere else where most people has potential access.People use need not be the one that specifically intends to have the public conscious of the invention. Any use which is often potentially accessed through the public will suffice to begin the main one year clock running (but a secret use will usually not invoke the main one-year rule).
3) Printed publication in the United States or abroad: Any newspaper article, magazine article, trade paper, academic thesis or other printed publication by you or by another person, accessible to people in the United States or abroad multiple year before your filing date, will prevent you from acquiring a patent on your invention.Be aware that even an article published by you, about your own invention, will start usually the one-year clock running.So, for instance, if you detailed your invention in a natmlt release and mailed it, this could start usually the one-year clock running.So too would usually the one-year clock start running for you if a complete stranger published a printed article about the topic of your invention.
4) Patented in the United States or abroad: If a United States Of America or foreign patent covering your invention issued spanning a year just before your filing date, you may be barred from getting a patent. Compare this with the previous section regarding United States Of America and foreign patents which states that, under 102(a) in the patent law, you happen to be prohibited from acquiring a patent in the event the filing date of another patent is sooner than your date of invention. Under 102(b) which our company is discussing here, you can not get yourself a patent with an invention which was disclosed in another patent issued over a year ago, even if your date of invention was before the filing date of the patent.